Federalist No. 73

The Provision For The Support of the Executive, and the Veto Power

To the People of the State of New York:

The third ingredient towards constituting the vigor of the
executive authority, is an adequate provision for its support. It
is evident that, without proper attention to this article, the
separation of the executive from the legislative department would be
merely nominal and nugatory. The legislature, with a discretionary
power over the salary and emoluments of the Chief Magistrate, could
render him as obsequious to their will as they might think proper to
make him. They might, in most cases, either reduce him by famine,
or tempt him by largesses, to surrender at discretion his judgment
to their inclinations. These expressions, taken in all the latitude
of the terms, would no doubt convey more than is intended. There
are men who could neither be distressed nor won into a sacrifice of
their duty; but this stern virtue is the growth of few soils; and
in the main it will be found that a power over a man's support is a
power over his will. If it were necessary to confirm so plain a
truth by facts, examples would not be wanting, even in this country,
of the intimidation or seduction of the Executive by the terrors or
allurements of the pecuniary arrangements of the legislative body.

It is not easy, therefore, to commend too highly the judicious
attention which has been paid to this subject in the proposed
Constitution. It is there provided that “The President of the
United States shall, at stated times, receive for his services a
compensation which shall neither be increased nor diminished during
the period for which he shall have been elected; and he shall not
receive within that period any other emolument from the United
States, or any of them.” It is impossible to imagine any provision
which would have been more eligible than this. The legislature, on
the appointment of a President, is once for all to declare what
shall be the compensation for his services during the time for which
he shall have been elected. This done, they will have no power to
alter it, either by increase or diminution, till a new period of
service by a new election commences. They can neither weaken his
fortitude by operating on his necessities, nor corrupt his integrity
by appealing to his avarice. Neither the Union, nor any of its
members, will be at liberty to give, nor will he be at liberty to
receive, any other emolument than that which may have been
determined by the first act. He can, of course, have no pecuniary
inducement to renounce or desert the independence intended for him
by the Constitution.

The last of the requisites to energy, which have been
enumerated, are competent powers. Let us proceed to consider those
which are proposed to be vested in the President of the United
States.

The first thing that offers itself to our observation, is the
qualified negative of the President upon the acts or resolutions of
the two houses of the legislature; or, in other words, his power of
returning all bills with objections, to have the effect of
preventing their becoming laws, unless they should afterwards be
ratified by two thirds of each of the component members of the
legislative body.

The propensity of the legislative department to intrude upon the
rights, and to absorb the powers, of the other departments, has been
already suggested and repeated; the insufficiency of a mere
parchment delineation of the boundaries of each, has also been
remarked upon; and the necessity of furnishing each with
constitutional arms for its own defense, has been inferred and
proved. From these clear and indubitable principles results the
propriety of a negative, either absolute or qualified, in the
Executive, upon the acts of the legislative branches. Without the
one or the other, the former would be absolutely unable to defend
himself against the depredations of the latter. He might gradually
be stripped of his authorities by successive resolutions, or
annihilated by a single vote. And in the one mode or the other, the
legislative and executive powers might speedily come to be blended
in the same hands. If even no propensity had ever discovered itself
in the legislative body to invade the rights of the Executive, the
rules of just reasoning and theoretic propriety would of themselves
teach us, that the one ought not to be left to the mercy of the
other, but ought to possess a constitutional and effectual power of
selfdefense.

But the power in question has a further use. It not only serves
as a shield to the Executive, but it furnishes an additional
security against the enaction of improper laws. It establishes a
salutary check upon the legislative body, calculated to guard the
community against the effects of faction, precipitancy, or of any
impulse unfriendly to the public good, which may happen to influence
a majority of that body.

The propriety of a negative has, upon some occasions, been
combated by an observation, that it was not to be presumed a single
man would possess more virtue and wisdom than a number of men; and
that unless this presumption should be entertained, it would be
improper to give the executive magistrate any species of control
over the legislative body.

But this observation, when examined, will appear rather specious
than solid. The propriety of the thing does not turn upon the
supposition of superior wisdom or virtue in the Executive, but upon
the supposition that the legislature will not be infallible; that
the love of power may sometimes betray it into a disposition to
encroach upon the rights of other members of the government; that a
spirit of faction may sometimes pervert its deliberations; that
impressions of the moment may sometimes hurry it into measures which
itself, on maturer reflexion, would condemn. The primary inducement
to conferring the power in question upon the Executive is, to enable
him to defend himself; the secondary one is to increase the chances
in favor of the community against the passing of bad laws, through
haste, inadvertence, or design. The oftener the measure is brought
under examination, the greater the diversity in the situations of
those who are to examine it, the less must be the danger of those
errors which flow from want of due deliberation, or of those
missteps which proceed from the contagion of some common passion or
interest. It is far less probable, that culpable views of any kind
should infect all the parts of the government at the same moment and
in relation to the same object, than that they should by turns
govern and mislead every one of them.

It may perhaps be said that the power of preventing bad laws
includes that of preventing good ones; and may be used to the one
purpose as well as to the other. But this objection will have
little weight with those who can properly estimate the mischiefs of
that inconstancy and mutability in the laws, which form the greatest
blemish in the character and genius of our governments. They will
consider every institution calculated to restrain the excess of
law-making, and to keep things in the same state in which they
happen to be at any given period, as much more likely to do good
than harm; because it is favorable to greater stability in the
system of legislation. The injury which may possibly be done by
defeating a few good laws, will be amply compensated by the
advantage of preventing a number of bad ones.

Nor is this all. The superior weight and influence of the
legislative body in a free government, and the hazard to the
Executive in a trial of strength with that body, afford a
satisfactory security that the negative would generally be employed
with great caution; and there would oftener be room for a charge of
timidity than of rashness in the exercise of it. A king of Great
Britain, with all his train of sovereign attributes, and with all
the influence he draws from a thousand sources, would, at this day,
hesitate to put a negative upon the joint resolutions of the two
houses of Parliament. He would not fail to exert the utmost
resources of that influence to strangle a measure disagreeable to
him, in its progress to the throne, to avoid being reduced to the
dilemma of permitting it to take effect, or of risking the
displeasure of the nation by an opposition to the sense of the
legislative body. Nor is it probable, that he would ultimately
venture to exert his prerogatives, but in a case of manifest
propriety, or extreme necessity. All well-informed men in that
kingdom will accede to the justness of this remark. A very
considerable period has elapsed since the negative of the crown has
been exercised.

If a magistrate so powerful and so well fortified as a British
monarch, would have scruples about the exercise of the power under
consideration, how much greater caution may be reasonably expected
in a President of the United States, clothed for the short period of
four years with the executive authority of a government wholly and
purely republican?

It is evident that there would be greater danger of his not
using his power when necessary, than of his using it too often, or
too much. An argument, indeed, against its expediency, has been
drawn from this very source. It has been represented, on this
account, as a power odious in appearance, useless in practice. But
it will not follow, that because it might be rarely exercised, it
would never be exercised. In the case for which it is chiefly
designed, that of an immediate attack upon the constitutional rights
of the Executive, or in a case in which the public good was
evidently and palpably sacrificed, a man of tolerable firmness would
avail himself of his constitutional means of defense, and would
listen to the admonitions of duty and responsibility. In the former
supposition, his fortitude would be stimulated by his immediate
interest in the power of his office; in the latter, by the
probability of the sanction of his constituents, who, though they
would naturally incline to the legislative body in a doubtful case,
would hardly suffer their partiality to delude them in a very plain
case. I speak now with an eye to a magistrate possessing only a
common share of firmness. There are men who, under any
circumstances, will have the courage to do their duty at every
hazard.

But the convention have pursued a mean in this business, which
will both facilitate the exercise of the power vested in this
respect in the executive magistrate, and make its efficacy to depend
on the sense of a considerable part of the legislative body.
Instead of an absolute negative, it is proposed to give the
Executive the qualified negative already described. This is a power
which would be much more readily exercised than the other. A man
who might be afraid to defeat a law by his single veto, might not
scruple to return it for reconsideration; subject to being finally
rejected only in the event of more than one third of each house
concurring in the sufficiency of his objections. He would be
encouraged by the reflection, that if his opposition should prevail,
it would embark in it a very respectable proportion of the
legislative body, whose influence would be united with his in
supporting the propriety of his conduct in the public opinion. A
direct and categorical negative has something in the appearance of
it more harsh, and more apt to irritate, than the mere suggestion of
argumentative objections to be approved or disapproved by those to
whom they are addressed. In proportion as it would be less apt to
offend, it would be more apt to be exercised; and for this very
reason, it may in practice be found more effectual. It is to be
hoped that it will not often happen that improper views will govern
so large a proportion as two thirds of both branches of the
legislature at the same time; and this, too, in spite of the
counterposing weight of the Executive. It is at any rate far less
probable that this should be the case, than that such views should
taint the resolutions and conduct of a bare majority. A power of
this nature in the Executive, will often have a silent and
unperceived, though forcible, operation. When men, engaged in
unjustifiable pursuits, are aware that obstructions may come from a
quarter which they cannot control, they will often be restrained by
the bare apprehension of opposition, from doing what they would with
eagerness rush into, if no such external impediments were to be
feared.

This qualified negative, as has been elsewhere remarked, is in
this State vested in a council, consisting of the governor, with the
chancellor and judges of the Supreme Court, or any two of them. It
has been freely employed upon a variety of occasions, and frequently
with success. And its utility has become so apparent, that persons
who, in compiling the Constitution, were violent opposers of it,
have from experience become its declared admirers.[1]

I have in another place remarked, that the convention, in the
formation of this part of their plan, had departed from the model of
the constitution of this State, in favor of that of Massachusetts.
Two strong reasons may be imagined for this preference. One is
that the judges, who are to be the interpreters of the law, might
receive an improper bias, from having given a previous opinion in
their revisionary capacities; the other is that by being often
associated with the Executive, they might be induced to embark too
far in the political views of that magistrate, and thus a dangerous
combination might by degrees be cemented between the executive and
judiciary departments. It is impossible to keep the judges too
distinct from every other avocation than that of expounding the laws.
It is peculiarly dangerous to place them in a situation to be
either corrupted or influenced by the Executive.